The curious case of Old Mr. Bunny

From The Big Issue (17-23 Feb 2020) | From The Tale of Benjamin Bunny by Beatrix Potter | Original © 1904 by Beatrix Potter

“Everyone has heard the adage, “A picture is worth a thousand words.” Pictures are also worth a crap load of money to the person suing you for copyright infringement.”

— A Guide To Copyright and Fair Use Laws For Online Images by Danielle Prager

A friend of mine asked if it takes a lot of time getting permissions for my articles. So I thought now would be a good time to explain Fair Use policy, and talk about copyright in general.

But as I began writing, the stars aligned, and I came across an opinion piece in The Big Issue which made use of an illustration by Beatrix Potter. The caption read (incorrectly), Not all rabbits have Peter’s talent for survival - incorrect because the picture is of Old Mr. Bunny (not Peter). Taken from The Tale of Benjamin Bunny, surprisingly neither the book nor Potter herself, are credited. But worse - the photo is attributed: [the Photographer]* /Alamy Stock Photo.

While not Copyright theft (since the Photographer didn’t claim copyright ownership by adding the © symbol) this is surely copyright infringement - right?…

 

‘Copyright protects your work and stops others from using it without your permission.’ 

- GOV.UK

 

Or, as Beatrix Potter once wrote,

 

The bad Rabbit would like some carrot.

He doesn’t say “Please.”

He takes it!

- The Story of a Fierce Bad Rabbit by Beatrix Potter (Frederick Warne & Co. 1906)

 

But as with most things, it’s not that simple. Because copyright protection does not last forever. (To add to the confusion, Copyright Law also varies depending on the type of work and between territories.) Here in the UK, copyright for a written and artistic work lasts for 70 years after the author’s death. The article, Peter Rabbit Loses Copyright Protection, confirms: 

 

In 2014, creators who died in 1943 fall into the public domain. One of those authors is Beatrix Potter, the author and illustrator who wrote The Tale of Peter Rabbit, making her works available… [to] be freely exploited by any party for any purpose.. without permission.

 

The British government’s own website backs this up: ‘Once your copyright has expired, anyone can use or copy your work.’

So our Bunny photographer is in the clear?

Not necessarily.

 

From Sorry by Norbert Landa and Tim Warnes (Little Tiger Press 2009) | Illustration © 2019 by Tim Warnes

 

According to Lana Castleman (writing on kidscreen.com), the representation rights to the classic World of Beatrix Potter property and preschool series The Tales of Peter Rabbit were purchased in 2011 by Silvergate Media. Meaning Silvergate control the licensing and merchandising rights to The World of Beatrix Potter.

(Later in her article, Castleman states that UK-based Frederick Warne & Co. ‘remains the underlying owner of Potter’s literary properties.’)

By now, my head was spinning. Precisely who does own the copyright to Beatrix Potter’s work? (And how trustworthy is the information on the internet?!) Like a good little bunny, I dug deeper (not to discredit anyone but to try and get my facts straight). Which is when I realised how extraordinarily complicated copyright law is. (One could say, it’s an absolute mess, which leads to confusion - even among those who work in publishing!) 

I decided to contact the professionals, and emailed the government’s own Intellectual Property Office:

 

Please could you confirm that the following work (specifically the illustrations) is out of copyright, in the public domain and freely available to use:

- Beatrix Potter’s illustrations

I look forward to hearing from you…

 

It didn’t help at all. GOV.UK’s IP advisor replied:

 

Please be advised the copyright would last the lifetime of the owners, Plus 70 [years] from the First January of their passing. [sic]

 

No mention of Silver Media owning the licencing rights.

So I enquired with The Beatrix Potter Society.

Member Betsy replied:

 

Beatrix Potter illustrations are still under copyright. The Society has nothing to do with the copyrights, though.

They are still with her publisher which is now Penguin Random House with the imprint Frederick Warne.

All my best,

Betsy

 

But Betsy! I wanted to cry - Beatrix Potter died in December 1943! Her published works came out of copyright 70 years - in January 2014! 

Wait! Perhaps that’s the secret to unravelling at least some of this mess. 

Published works.

  

The Tale of Kitty-In-Boots, illustrated by Quentin Blake | Illustration © 2016 by Quentin Blake |Image source: barnesandnoble.com

 In 2016, Frederick Warne & Co. published Beatrix Potter’s The Tale of Kitty-in-Boots (illustrated by Sir Quentin Blake) - for the very first time.

Since it was published after Potter’s death, it falls under different copyright law: so Kitty-in-Boots is copyright protected until 2039. (Blake’s illustrations, of course, will be afforded copyright protection for 70 years after his death).

The Kitty-in-Boots manuscript was discovered in the Victoria and Albert Museum archive (the most extensive public collection of Beatrix Potter’s letters and drawings) in 2015. Which raises the question: who owns her other original artwork and manuscripts?

Potter left almost all the original illustrations for her books to the National Trust. (The Tale of Peter Rabbit is owned by Frederick Warne and Company, The Tailor of Gloucester by the Tate Gallery and The Tale of the Flopsy Bunnies by the British Museum.) Other pieces will be in private collections. 

But owning a piece of original art - even when you have paid for it - does not give you ownership of the copyright in the artwork, which remains with the artist.

According to Wikipedia, the copyright to Beatrix Potter’s stories and merchandise was given (I assume in her will) to her publisher Frederick Warne & Co. Today, Warne is a division of the Penguin Group  - meaning Penguin have the right to reproduce, licence and benefit from the exploitation of Potter’s work.

Except of course that the copyright in Potter’s work expired in the UK and other countries under the 70-years-after-death policy - didn’t it? 

 I hopped over to the FAQ page on PeterRabbit.com - which made me raise a quizzical eyebrow: 

I would like to use Peter Rabbit images and/or text. Who should I contact for permission?

All Beatrix Potter’s illustrations and tales are owned by Frederick Warne & Co. and cannot be used without permission from the Frederick Warne Rights Department.

Please click here to download a Permissions Application Form, and complete and return to rights-brandsandlicensing@penguinrandomhouse.co.uk who will get back to you in due course.

 

Warne & Co. own all Beatrix Potter’s illustrations? What about those bequeathed to the National Trust? Those owned by the Tate and the British Museum? Not to mention private collections. Are they trying to give the impression that they still control (or indeed, control) rights that are no longer theirs? (The fact that Silvergate Media is the global licensing agent for Beatrix Potter/Peter Rabbit is also stated on the FAQ page. (Which, to me, seems to contradict the premise that her work ‘cannot be used without permission from the Frederick Warne Rights Department’ - and the need to contact rightsbrandsandlicensing@penguinrandomhouse.co.uk.)

Can it really be this complicated?

Remember that image of Old Mr. Bunny in The Big Issue? Let’s just assume that yes, Potter’s work is out of copyright. And that the photograph was taken from the original Beatrix Potter art (rather than the printed illustration, whose copyright - I think - would be owned by the publisher).

Because it is instantly identifiable as Beatrix Potter’s bunny, it’s my understanding that the Photographer would need a licence granting him rights to use the image, or likeness, of the character. The Photographer would, in turn, issue a release form (a signed document giving permission from the owner - whoever that is) to The Big Issue, giving them the all-clear.

Except on the Photographer’s Alamy page, it clearly states: there is no release form for this image (meaning none was issued).

Curiouser and curiouser. (Sorry, wrong book!).

After further poking about in the recesses of the internet, I learnt that you do not need a release for editorial use (i.e. when ‘[t]he image … is used to illustrate an article, story, critique or educational text.’)

Which is where Fair Use comes in.

Except that The Big Issue article was not about Beatrix Potter or something closely related (for example, classic children’s books). So I think it would be a stretch to say that the use of Old Mr. Bunny falls under Fair Use law.

 MY BRAIN HURTS! 

Which brings me back full circle to my friend’s question: does it take up a lot of time getting permissions for my blog?

The short answer is yes and no - yes because I do my best to seek permission from the copyright holders; no, because I use them under Fair Use law (known as Fair Dealing in the US).

Confused? You should be! So, brace yourself - because next time, we’re going to wade into those murky water of Fair Use, where litigious beasts lurk around every corner… 

 

* I do not wish to discredit anyone, so I have decided to make the Photographer anonymous.

 Disclaimer:

I am but a humble storyteller.

I am not an attorney nor a lawyer (and clearly do not have a full grasp of the legal system)!

So please do not take my opinions as law, or indeed, truth. And remember that laws vary from country to country.

Detail from What Small Rabbit Heard by Sheryl Webster and Tim Warnes (Oxford University Press 2010) | Illustration © 2010 by Tim Warnes

My decision to give Small Rabbit the blue jacket was, of course, a nod to Peter Rabbit.

 Sources A Guide To Copyright and Fair Use Laws For Online Images by Danielle Prager (Rival IQ, January 25, 2019)The Big Issue 17-23 Feb 2020www.gov.uk/copyrightThe Story of a Fierce Bad Rabbit by Beatrix Potter (Frederick Warne & Co. 1906)Sorry by Norbert Landa, ill. by Tim Warnes (Little Tiger Press 2009) Alli buys rights to Beatrix Potter, Octonauts By Lana Castleman (kidscreen.com September 22, 2011)The Tale of Peter Rabbit by Beatrix Potter (Frederick Warne & Co. 1902)The Tale of Kitty-In-Boots by Beatrix Potter, ill. by Quentin Blake (Frederick Warne & Co. 2016) Beatrix Potter and Copyright By Chris J Holland (UCL Library Services, 12 April 2016)Wikipedia: Beatrix Potter Property and model releases explained (Alamy.com) The Tale of Kitty in Boots: New Beatrix Potter Book Cover Revealed - BNKidsblogWikipedia: The Tale of Kitty-In-Bootswww.Peterrabbit.comWhat Small Rabbit Heard by Sheryl Webster, ill. by Tim Warnes (Oxford University Press 2010)